Minor corrections made by the Court
Respondent Nos. 1 and 2 who were stated to be the voters from the same constituency filed election petitions on grounds of corrupt practices. The challenge to the election of the appellant was laid under section 123 (4) of the Representation of People Act, 1950 (hereinafter referred to as the ‘said Act’) alleging that the appellant made false allegations against respondent No. 3, a candidate, knowing the same to be false.
Hon’ble J. Chelameswar and Sanjay K. Kaul, JJ., have held that minor corrections are permitted to be made vide order dated 18.07.2016 by the Court. A mountain out of a molehill has been made without appreciating the office notings in the true perspective. The Registry was fully conscious that the eight defects pointed out by it could not be permitted to be cured by the Registry itself and that is why the matter was directed to be placed before the concerned Judge as an unnumbered election petition. On 18.07.2016, the learned Judge did not find merit in some of the objections pointed by the Registry and to the extent some minor corrections were required, which were not material. One week’s time was granted to respondent Nos. 1 and 2 to carry out the corrections. The needful was done within the stipulated time and it is thereafter that notices were issued to the appellant.
The whole premise of the plea of the appellant is based on the Registry permitting corrections to be made is, thus, fallacious and, thus, the presentation of the petition cannot be said to be beyond time stipulated in section 81 (1) of the said Act. There was, in fact, really no occasion in these facts for the Court to examine the Registry officer.
The issue of supply of copies has also been appropriately dealt with as copies of a transcript and the CD were supplied as also the translation thereof. This is not stage to verify as to whether the translation correctly reflects what was said. In any case it would be a doubtful proposition whether it was mandated that a translation should also be filed that being possible a part of the requirement of the High Court Rules since he record had to be in English. It has rightly been observed that the phone has been filed and keeping the phone in a sealed cover or the allegation of non-supply of the chip alleged to be violative of section 81 (3) of the said Act is not a plea which can be accepted. At best these are all matters for trial.
We are conscious of the fact that the law relating to election is a technical one as it amounts to a challenge laid to the democratic process determining the will of the people. An eligible person whether a candidate or a voter coming to Court, seeking to set aside any election has to thus, meet with the technical natures of the election petition.
Abdulraksh v. K.P. Mohammed, 2018 (184) AIC 92 SC
Liberal view should be taken to condone delay
By impugned order, the High Court dismissed the application for condonation of delay as well as the appeal. In the opinion of the High Court, the appellant failed to make out any sufficient cause for condoning the delay in filing appeal and hence the application seeking condo nation of delay of 554 days in filing the appeal was not liable to be condoned. As a result, the appeal was dismissed as barred by limitation, which has given rise to filing of these appeals by way of special leave by defendant No. 1– father-in-law in this Court.
Hon’ble R.K. Agrawal and A.M. Sapre, JJ., have held that the cause pleaded by the appellant therein was relating to his prolonged illness during the period in question. The appellant also filed medical documents to support the factum of his illness during the relevant time.
It is not in dispute that the appellant is an old man and in his late sixties. It is also not in dispute that he did suffer heart disease during the relevant period and later he was down with dengue fever. It is also not in dispute that he was hospitalized to get medical treatment for these two ailments for a long time during that period. It is also not in dispute that he was mentally disturbed due to disputes going on in his family and was not able to attend to his day-to-day duties due to his old age and prolonged ailments.
It is an admitted fact that the High Court did not dispute the genuineness of these facts and nor disputed the genuineness of the documents filed by the appellant in support of the cause pleaded. On the other hand, the High Court found as a fact that the appellant did suffer these ailments.
In the light of the aforementioned undisputed facts, in our opinion, the High Court should have taken liberal view in the matter and held the cause shown by the appellant as “sufficient cause” within the meaning of Section 5 of the Limitation Act and accordingly should have condoned the delay in filing the appeal.
One cannot now dispute the legal proposition that the earlier view of this Court that the appellant was required to explain the delay of each day till the date of filing the appeal has since been diluted by the later decisions of this Court and is, therefore, held as no longer good law.
In our considered opinion, having regard to the totality of the facts and circumstances of the case and the cause shown by the appellant, which is duly proved by the documents, we are inclined to hold that the cause shown by the appellant for condoning the delay in filing the appeal before the High Court was/is a sufficient cause within the meaning of Section 5 of the Limitation Act and, therefore, the application filed by the appellant for condonation of delay of 554 days in filing the appeal deserves to be condoned.
Ummer v. Pottengal Subida, 2018 (184) AIC 104 SC
Order taking cognizance should reflect independent application of mind
Hon’ble N.V. Ramana and Abdul Nazeer, JJ., have held that the standard required by the Magistrate while taking cognizance is well-settled by this Court in catena of judgments. In Subramanian Swamy v. Manmohan Singh and another, this court explained the meaning of the word ‘cognizance’ holding that “…In legal Parlance cognizance is taking judicial notice by the Court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceeding and determination of the cause or matter judicially”.
We may note that the Magistrate while taking cognizance has to satisfy himself about the satisfactory grounds to proceed with the complaint and at this stage the consideration should not be whether there is sufficient ground for conviction. It may not be out of context to note that at the stage of taking cognizance, the Magistrate is also not required to record elaborate reasons but the order should reflect independent application of mind by the Magistrate to the material placed before him.
On a perusal of the order of the learned Magistrate taking cognizance, it is apparent that the learned Magistrate observes that the Sessions court has already made out a prima facie case. Such finding would be difficult to sustain as the revisional court only observed certain aspects in furtherance of remanding the matter. Such observations could not have been made by the Magistrate as he was expected to apply his independent mind while taking cognizance. In the case on hand, we recognize the limitation on the appellate forum to review subjective satisfaction of the Magistrate while taking cognizance, but such independent satisfaction unless reflected in the order would make it difficult to be sustained. There is no dispute that Justice should not only be done, but should manifestly and undoubtedly be seen to be done. It is wrought in our constitutional tradition that we imbibe both substantive fairness as well as procedural fairness under our criminal justice system, in the sense of according procedural fairness, in the making of decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.
Rajendra Rajoriya v. Jagat Narain Thapak, 2018 (184) AIC 106 SC.